I am currently employed as H1B visa by one Indian consultant company in Chicago, Illinois. Due to the economic situation in the US's the president of the company has implementing the new policy stated that the company will deduct the amount of mon...
The employer can reduce an employee's salary, including an H-1B employee. On the procedural side, the employer needs to revise the public access file and possibly file an amended petition. Also, the lower salary still needs to meet the prevailing wage requirements.
It is unlawful for an employer to bench an H-1B worker without pay, which is why the employer is doing this. They anticipate a need to bench and so want to have monies in reserve. Essentially, its a pay cut and they are banking the savings for future need if they need to bench you. Its all ok so long as you never fall under prevailing wage.
I hope this information is helpful.
Leslie DahanSee question
Hi, I am on an H1-B visa. I have had several issues with my employer. i have paid for H1-visa petition, attorney fees and many more. To summarize, my employer has violated more 10 h1 visa employment rules. I want to file a complaint against him b...
You mentioned your "client". Is this question for you or for a client? Or are you a consultant, working at a client site?
It is acceptable for an H-1B employer to have the employee pay attorneys fees and filing fees for the H-1B petition. There are two important points, though. (1) These costs must be deducted from your salary figure when assessing whether you are being paid the higher of the actual or prevailing wage, which is required by H-1B employers. For example, if the H-1B petition indicates that the prevailing wage for your position in your location is $50,000 and the H-1B petition indicates that you will be paid $50,000, but you spent $5,000 on immigration costs, then the DOL will deem your salary as $45,000 when determining whether you are being paid the prevailing wage. In this example, the employer owes you $5,000. (2) You may not, not, NOT pay the $1500 H-1B training fee. Nor can the employer pay it and then deduct the monies from your paycheck.
You have not mentioned anything about this, but remember that an employer cannot bench an H-1B worker w/o pay.
If you feel you've been wronged, it is prudent to speak to an immigration attorney to assess the case, but that is not required. You can directly file a complaint with the Department of Labor. They may choose to investigate and there is no cost to you. They may choose not to investigate, in which case you won't have any satisfaction on the matter and you'd have to sue or choose to drop it.
As far as the H-1B transfer, there should be no impact. There can be problems if benching has occurred, but you've not mentioned that. Please feel free to contact me should you need assistance on this matter.
Leslie DahanSee question
as a Professor according to the lawyer he will acquire LPR status in 2 or 3 months time. I am currently out of status for over 2 years and entered US legally as tourist. My German bf and I dearly love each other and would like to stay here in US ...
In cases where I have a client with a pending PR case, especially at the I-485 Adjustment of Status stage, who is thinking about getting married, the standard advice is this - Get married before your Adjustment of Status is approved. If the marriage occurs prior to the person obtaining LPR status, then the spouse can similarly obtain permanent residence as the derivative beneficiary. If the marriage occurs after the person obtains LPR status, then the new spouse must be sponsored for a green card under family based immigration which has backlogs of up to 4+ years.
In your case, though, since you overstayed your authorized period of stay for so long, you are ineligible to adjust status in the U.S. and would need to process for your green card out of the country. However, if/when you leave the United States (for that purpose or for any travel purpose), you will become subject to a 10 year bar from returning to the U.S. The only way to overcome the bar would be to seek a waiver in which it was demonstrated that your LPR spouse would suffer extreme hardship should you need to (1) live abroad or (2) be separated. This is a difficult threshold to meet, but you should speak to an immigration lawyer if you want to have the facts of your case assessed. Often, an argument is focused on the hardship to the LPR of having to live in a country where there is upheaval or a poor standard of living, but I suspect that since your future husband is from Germany, then an argument for extreme hardship should he have to move back to Germany may be dificult. The pureness of his blood is not something that fits into any equation.See question
Dear Leslie, I feel like that your answer is contradicting. You say my visa will be cancelled when I get the F1 visa. (Why? I heard that no one can cancel an unstamped H1-B, unless any law has been broken?). Then you say I can change my status fro...
Thanks for your feedback; I'm sorry my answer was confusing! Keep in mind that a "visa" and your "status" in the U.S. are two completely different things. A visa is a stamp in your passport that allows you to seek entry to the U.S. for a specific purpose. Once you are in the U.S. you have a "status" and, once here, you can change that status to something else (i.e. F-1 to H-1B) without any need to leave the U.S. and get a new "visa".
Generally, Consulates will only allow you to have one active visa in your passport at a time. If you have an H-1B visa already, but want to get an F-1 student visa, the Consulate will cancel the H-1B visa at the time they issue the F-1 visa. (As I mentioned, the exception to this is a visitor visa, which can stay valid even when another type of visa is issued.) The cancellation of the H-1B visa is not harmful to your immigration case; it is stricly administrative in that the State Department does not want individuals to have myriad valid visa types in a passport. Should you later go back to H-1B and need a new H-1B visa in your passport, you can get another one. Keep in mind that the H-1B that will be cancelled is simply the visa stamp in your passport; it does not invalidate the H-1B approval notice that you have. Its important that you understand the terminology.
The H-1B cap is a big subject, but I'll provide a brief summary. You can find some more information on the cvap on my blog at http://dahanimmigration.blogspot.com/. There are limited numbers of new H-1Bs available each year. The key here is the word NEW. If you've already been granted an H-1B, then you are not considered in need of a new H-1B and thus exempt from the annual limit ("cap"). The grey area is what is considered "granted" an H-1B. That is what I was referring to in my initial response. Right now, there are ample new H-1Bs available for whoever needs them, but in some years the annual limit is not enough to meet the demand. In those situations, the H-1Bs run out for the year and anyone needing a new H-1B must wait until they become available again. That can present some difficult timing challenges, but there are several strategies that can be used to make the timing work until an H-1B can be obtained.
If you are in the U.S. as an F-1 student (and assume that the H-1B visa stamp in your passport was cancelled in the process), you can later change status to H-1B. Since you will still have an H-1B approval notice, then its likely you are no longer subject to the H-1B cap at all. If/when you undertake international travel, then you'll appear at a U.S. Consulate to get a new H-1B visa in your passport (at which time the old F-1 visa will be cancelled for the same reason.) You can change "status" in the U.S. without leaving the country and without needing any new visa. Remember, status and visa are two very different things. If/when you leave the country, then you will need the new visa.
I hope that this provided the additional clarification you needed!
Can he do that? He really needs someone to work on web development for his business, but just not very urgent.
Its certainly possible. What is your visa status now? The green card process is long, so its best to (1) get into a work visa status that allows you to work in the short term and (2) pursue the permanent residence case simultaneously. I am happy to set up a telephone consultation if you wish; I handle cases from all locations in the U.S. and abroad.
Dahan & Associates
I have been hearing all stories of re entry denial for H1B visa olders even with valid documents... Just wanted to check how much water holds in these stories.. I am H1B visa holder and have have all the documents I am in job (not on bench or inho...
I hope that your travel was uneventful on the immigration front. When you hold H-1B status, this is what you should travel with:
Unexpired passport with unexpired H-1B visa stamp (if your visa is expired, you'll need to secure a new one while abroad)
ORIGINAL H-1B approval notice
Proof of continuing employment with H-1B employer - past few paystubs, company ID card, etc - These items should not be presented to the immigration inspector, but should be carried with you in case needed.
Also carry a copy of the H-1B petition that was filed on your behalf and make sure you've read it and are familiar with its contents. Make sure any questions asked of you by an immigration inspector are answered in a manner consistent with the information in the H-1B petition. If the H-1B petition is not accurate, be sure to contact the company/immigration attorney for counsel. - Do not present this to the immigration examiner, but carry it with you in case needed.
I hope this information is helpful.
Leslie DahanSee question
I am a H1B visa holder valid till June/2011 which is through my J1 waiver Job. I am engaged to get married next year to an American Citizen. We Live together. Can I file for a green card once I get married and does that pose any problem by the f...
Once you are married, you can file your I-130/I-485 case for permanent residence. Some companies wish to sponsor employees under employment-based immigration even if they have a family based case in progress, which is perfectly fine (but, in my opinion, unnecessary). I'm not sure I understand your concerns regarding a contract for your employer to sponsor you. Are you worried that they will be upset that you have a family based case? I imagine by June 2011, you will have long had your green card already, which will save the company cost and effort. Please do not hesitate to contact me should you wish to secure immigration counsel for your family based case.
filed an appeal which is pending now. My status was/ is H4. My questions are: 1. Do I have to go to a consulate outside U.S. to re-instate my H4 status after the I-485 denial since I used the EAD? 2. If I leave U.S. now, does that mean I abandon...
I hope you used an attorney for your appeal. As far as your H-4 status, I think you'll find differing opinions on this. My opinion is that it is best to depart/reenter on H-4 to be sure that you are properly in status, since you have (lawfully) worked and H-4s are not authorized to work. (I'm assuming that your H-4 I-94 card is not expired; if it is, then clearly you need to depart and also need to get a new H-4 visa in your passport.) If you have a valid H-4 visa in your passport, you can reuse that; if not, you'll need to go to a U.S. Consulate to secure one. You will not abandon your appeal by international travel. If your appeal is denied, I assume that you'll still have H-4 status so you would not be out of status at all.
Please don't hesitate to contact me should you need further information.
Leslie DahanSee question
I filed my divorce here in usa we both(wife and Husband) are on h1b. Im the green card applicant filed for I485 still waiting for green card , i added my spouse as a benefeciary to my I485 status. After getting the divorce do i need to update the ...
If you had a lawyer assist you with your I485 case, you'll need to let your lawyer know of the divorce.
So long as you are married, your spouse is eligible for permanent residence as your dependent. Once you divorce, though, this eligibility is lost. Its important that your wife obtain legal counsel on this matter.
You are not required to notify the USCIS of the divorce, but you are permitted. There is no form. A divorce would have no impact on your own case.
I hope this information is helpful; please do not hesitate to contact me should you need further assistance.
Recently my H1B was approved with COS. Currently I am in OPT(EAD card says it expires on Mar’10) DSO informed that my OPT will expire on 30th Sept in the SEVIS system. Now my questions are: 1. Will the date in SEVIS system change to Mar., if my...
Revocation of an H-1B is a slow process and so there is no guarantee that it would be completed by October 1. Also, you'd have to rely on the employer to provide you with the revocation letter from the USCIS to document the revocation, which is something they may or may not wish to provide you. My advice would be to be out of the United States over the COS period so that the H-1B does not trigger. Then, return to the U.S. in F-1 status. You can enter the U.S. with your expired F-1 visa under the 30 Day Rule. However, your SEVIS record will have been closed. You need to contact your DSO to manually reopen it. Be sure to speak to your DSO about the procedure for this and whether it needs to be completed before you can reenter the country. Also keep in mind that you may need a visa to enter Canada. If the H-1B COS triggers (i.e. if you are in the U.S. on October 1 when your status is changed), then you cannot get your F-1 OPT back. Typically when a person travels to Canada and reenters under the 30 day rule, there is no entry stamp in the passport. You need to be sure, though, that you have some proof of your departure from the U.S. over this period. Ask the immigration inspector for an entry stamp in your passport even though one isn't required. Ideally, you'll have one that shows when you entered Canada and another to show when you entered the U.S. If you are not able to get your passport stamped, then be sure you save evidence that can demonstrate your presence out of the U.S. for this period, such as credit card receipts from Canada for this period.
I hope this information is helpful. Do not hesitate to contact me should you need further assistance.
Leslie DahanSee question